Documents filed in the case of a former Lawrence police officer accused of raping a woman while on duty indicate that prosecutors are moving forward cautiously to protect both the woman and their case.
The charges against Jonathan Gardner, 41, of Tonganoxie, stem from a report made in November 2021 alleging that Gardner, while on duty in January 2017, engaged in sex with a 20-year-old who was incapable of giving consent because of intoxication or, in the alternative, who was overcome by force or fear.
During a court appearance on Tuesday, Gardner was formally charged with one count of rape and 12 counts each of unlawful acts concerning computers and official misconduct, stemming from alleged illegal and unauthorized searches of law enforcement information systems between 2017 and 2020.
Douglas County District Attorney Suzanne Valdez and Deputy DA Joshua Seiden filed a motion to seal the probable cause affidavit in the case against Gardner, stating that its disclosure would “jeopardize the mental and emotional safety and well-being of the victim.”
A probable cause, or PC, affidavit is a sworn statement that outlines law enforcement’s justification for an arrest or search warrant. That information frequently contains specific information about victims, witnesses and allegations. Unlike many other documents in court case files, they are not open to the public by default — but if someone files a request for the court to release the document to the public, judges determine whether to release them, and whether any information should be redacted.
It is not uncommon to see motions to seal affidavits, particularly in sex crime cases. Defense attorneys may also file motions to seal PC affidavits — which often cast suspects in a light most favorable to the prosecution — so that their clients have a better chance of getting a fair trial, among other reasons. Personally identifying information is generally redacted from the documents if they are released.
Judge Sally Pokorny had not yet made a ruling on whether to release the affidavit in Gardner’s case as of Friday afternoon. The DA’s office submitted separately a redacted copy of the affidavit for her to consider if she decides against sealing the entire document.
Valdez and Seiden also amended a motion asking the court for an upward departure from sentencing guidelines, meaning an extended sentence, should Gardner be convicted. An earlier motion had made the request based on “excessive brutality.” The amended document references “significant and substantial violations of the public trust” to justify the upward departure.
The DA’s office last week also filed an intent to include statements made by Gardner to law enforcement during the investigation if the case proceeds to trial. Gardner can file a motion to exclude the information from evidence; if he does, the DA’s office requests a hearing prior to trial to determine whether Gardner’s statements would be admissible.
As of Friday, Gardner’s defense attorney, John DeMarco, had not yet filed any motions in the case, according to online court records. DeMarco declined to comment on the pending motions.
A signature bond?
Gardner was a member of the LPD for approximately 8 1/2 years, from June 2013 through November 2021. He was released from the Leavenworth County jail the day he was arrested on a $50,000 own-recognizance bond, meaning he was allowed to sign himself out of jail and did not have to pay to be released.
Almost all rape and high-level sex crime cases charged over the past several years in Douglas County have involved cash or surety bonds, meaning the people charged had to pay to get out of jail while their case moves through court. Those bonds typically range from $10,000 to $100,000, and defendants generally pay a bail bondsman 10% of the total.
Bonds and conditions set by a judge are intended to strike a balance between a defendant’s liberty interests and the presumption of innocence versus public safety and the defendant’s flight risk, according to a 2020 report from the Kansas Supreme Court’s Pretrial Justice Task Force. Determining factors may include a person’s connection to the community, their history of appearing or failing to appear in court, the nature of the crime, and the defendant’s criminal history. Cash and surety bonds add to the incentive to appear for court hearings.
Some community members have questioned what they see as atypical leniency in Gardner’s bond. Douglas County District Court Chief Judge James McCabria pointed to the task force’s report for general information about bonds, but court officials declined to comment on Gardner’s case while it is ongoing.
Gardner’s next hearing is set for 2 p.m. Wednesday, March 30.
All arrestees and defendants in criminal cases should be presumed not guilty unless and until they are convicted.